104 Mich. 252 | Mich. | 1895
This action is brought to recover upon a contract originally made between Lorenzo Y. Davis and Walter F. Pumfrey and Martin L. Sweet, and assigned by Davis & Pumfrey to the plaintiffs. The contract provided that Davis & Pumfrey should cut and saw into lumber for the defendant all the merchantable red and white oak, black and white ash, hard and soft maple, birch, basswood, beech, pine, hemlock, and elm timber on certain descriptions of land mentioned. Defendant was to pay $6.50 per thousand feet for sawing, hauling, and piling all lumber, except hemlock, for which $6.25 per thousand was to be paid, and $3.25 for peeling, hauling, and piling the hemlock bark. The lumber was to be manufactured and piled in cross piles at West Troy station, each kind, length, and thickness of hardwood by itself, to be one inch thick and thicker, as defendant might direct. A scaler was to be agreed upon, and the scale made at the tail of the edger, each party paying half of scaler’s wages. The contract then provides:
“Such of the lumber as shall be spoiled in sawing (except one per cent.) shall he turned over to the first parties at the price it would have been worth if not spoiled in manufacturing, and any claims that the party of the second part may have on account of such badly-sawed lumber shall be made and settled before such lumber shall be shipped from West Troy, or else be deemed waived.”
Davis & Pumfrey commenced operations under the con-tract, and, plaintiffs claim, completed it in accordance with its terms. On May 19, 1891, Pumfrey assigned his interest in the contract to Davis, by a writing of that date. On October 22,1892, Davis assigned the contract to the plaintiffs ■by the following instrument:
“For a valuable consideration to me in hand paid, I do hereby assign, transfer, and set over unto J. T. Reynolds ■& Co., of Fremont, Newaygo Co., Michigan, all my right, title, and interest in, to, and under the above and foregoing ■contract, as modified.
“Witness my hand, this 22d day of October, A. D. 1892.
“Lorenzo V. Davis.”
At the time this assignment was made, plaintiffs claim there was due on the contract the sum of about $4,000.
The declaration sets up the contract and the assignments. In the notice under the plea of the general issue, •claim is made that Davis & Pumfrey did not manufacture the timber into lumber in a skillful and workmanlike manner, so as to obtain from the logs the largest percentage of the best qualities and grades of lumber, but sawed •them in such a careless, negligent, and reckless manner that a much larger proportion and percentage of the lumber therefrom had to be placed' and sold in inferior grades •than would have been the case had the proper skill been used in the sawing. It is also claimed by the notice that •the parties had waived the provision of the contract by which Davis & Pumfrey should take and pay for the lumber spoiled in sawing in excess of 1 per cent., and any •claims that defendant might have on account of bad sawing should be made and settled before such lumber should be shipped from West Troy, or else' deemed waived. On
While the record contains 60 assignments of error, only -two questions are mentioned or discussed in the brief of -defendant’s counsel:
“ What do you say as to the possibility of making good lumber when hemlock, pine, maple, beech, basswood, elm, ■and other kinds of timber are sawed promiscuously?
“A. It is possible.”
Other questions, of like import were asked and permitted to be answered, under objection. This raises the first •question suggested by defendant’s counsel.
The theory of the defendant was, in offering the testimony of witness Cook, that the lumber was not sawed in .a good and workmanlike manner, and that much of it, by reason of the sawing, was not merchantable. The testimony of Mr. Cook, however, was to the effect that, by
The judgment must be affirmed.